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Head of Kings County Criminal Bar Association weighs in on diminishing use of 18-b panel attorneys

Head of Kings County Criminal Bar Association weighs in on diminishing use of 18-b panel attorneys

Jay Schwitzman, president of the Kings County Criminal Bar Association. File photo

By Charisma L. Miller, Esq.

Brooklyn Daily Eagle

One of New York City Mayor Michael Bloomberg’s missions during his three-term stint as mayor was to eliminate, or at least reduce, the use of private attorneys to defend indigent criminal defendants where a conflict exists. Early in September, Bloomberg announced that he was putting his plan into action, to the consternation of many bar associations.

18-b panel attorneys are generally used to represent indigent criminal defendants when a conflict occurs, such as the multiple defendants being charged in connection to the same crime. These attorneys are mostly in private practice, but get paid by the city when used in conflict cases. Under Bloomberg’s plan, conflict cases will be referred to the Legal Aid Society, and where the Legal Aid Society represents the primary defendant, borough specific public defender services — instead of private attorneys—will be utilized.

When Bloomberg first announced his idea to replace 18-b panel attorneys with public defender services, many county bar associations filed suit arguing that the mayor need the approval of the bar associations prior to instituting such a move. The New York County Lawyers Association along with the Brooklyn Bar Association, Bronx County Bar Association, Queens County Bar Association and the Richmond County Bar Association asserted that Bloomberg’s plan undermined the intention of the New York State legislature.

In 1965, the legislature enacted article 18-b of the County Law in response to the Supreme Court's landmark decision in Gideon v. Wainwright, which found that indigent criminal defendants were had the right to an attorney.

Addressing the issue of whether or not Bloomberg violated county law when attempting to enact a proposal limiting the use of 18-b attorneys, The “City doubtless has considerable discretion to fashion an indigent defense plan…[and]… may appoint institutional providers to conflict cases independently of the bar associations and the court” Hon. Carmen Beauchamp Ciparick of the New York State Court of Appeals wrote in the decision of the court in Matter of the New York County Lawyers' Association v. Bloomberg. This discretion is limited, however, in that bar associations cannot be completely removed from serving indigent defendants in conflict cases.

To remedy this problem, Bloomberg created a combination plan that allows for 18-b panels and bar associations to be called upon when a representation conflict arises among the Legal Aid society, as primary defender, and the borough public defender, as secondary defender.

Kings County Criminal Bar Association President Jay Schwitzman finds that Bloomberg’s plan will cause more damage than good. “The city's plan to eliminate or curtail 18-b assignments in arraignments will adversely impact the rights of those that are arrested by slowing the arraignment process and will cost the city more money,” Schwitzman told the Brooklyn Daily Eagle.

Bloomberg contends that his new “comprehensive plan” will, in fact, save the city money. According to court papers, there are more than 1,000 private attorneys serving as 18-b panel attorneys within New York City, and approximately 44,000 conflict cases a year are assigned to these attorneys. The city estimates that the reduction of 18-b panel assignments will save the city $6 million in fiscal 2015, $6.2 million in fiscal 2016 and $6.4 in fiscal 2017 and years after that.

While upfront costs may be an attractive factor, Schwtizman argues that the price of experience is not being taken into consideration — a cost that can be quite tangible. “Felony 18-b lawyers are typically the most experienced trial attorneys and criminal defense attorneys. Felony 18-b lawyers handle the most serious cases, including murder and complex gang conspiracy cases. 18-b lawyers are private lawyers that are paid per case, and therefore there is an inherent incentive to handle as many cases as possible at an arraignment,” Schwitzman noted.

“Institutional providers such as The Legal Aid Society and Brooklyn Defender Services provide quality legal defense to indigent defendants. They are paid a straight salary whether they handle 20 cases or five cases. Additionally, institutional providers have set hours and usually will not stay past 1 a.m. in an arraignment part. If there are ready cases and the arraignment shift is ending, the 18-b lawyers stay past 1 a.m. to arraign cases that are ready.”

Effective counsel for arraignments can be the matter of life and death, Schwtizman reminds us. “Conditions at Central Booking are already horrific, and the arraignment process needs to be quicker so that prisoners do not have to stay in a small cell with 20 to 30 other inmates for a 24-hour period.”

One specific horror occurred in July 2013 when Kyam Livingston died in Central Booking awaiting arraignment. A wrongful death lawsuit filed by Livingston’s family asserts that the New York Police Department, whose officers were supervising Central Booking detainees, ignored Livingston’s repeated pleas for medical assistance. “This lawsuit if successful will likely cost the city a substantial amount of money,” said Schwitzman.

Bloomberg’s conflict counsel plan for indigent criminal defendants will begin with weekday arraignments and will be phased in for night and weekend arraignments. Full implementation of the plan is expected by December 2013.

“Eliminating 18-b attorneys from the arraignment process is not a good idea because 18-b lawyers are the most experienced criminal defense lawyers and can work expeditiously to arraign defendants,” Schwitzman warns. “To eliminate the most experienced lawyers, the 18-b lawyers, from the arraignment process will result in longer arrest to arraignment time, infringement on individuals’ civil liberties and will cost the city more money.”